Employment Discrimination 2012

 

ELLEN KATZ –  EMPLOYMENT DISCRIMINATION – DISCRIMINATION – FALL  FALL 2012 KATZ – EMPLOYMENT Theories of Discrimination Just as nature of prohibited discrimination is contested, so is the kind of equality to be achieved Three perspectives: main differences lie in factors deemed to be relevant and questions considered crucial Historical: model of colorblindne colorblindness ss

Focuses on past events surrounding the enactment of various civil rights laws and the evils they sought to address Crucial question is how a claim asserted today resembles the kind of discrimination legislature meant to eliminate Confines itself to official legislative history Wholly negative conception of equality emphasizing only what cannot be considered in making employment decisions No need to prove that race or other factor is being used in a stereotyping or stigmatizing manner, presumption that any use of race is undesirable Figures most prominently in definition of intentional discrimination Least controversial rationale for legal protections But offers little assistance on issues expanding beyond the race-based models, such as disabilities, and on affirmative action Economic: merit and management discretion

Focuses on near future, examining consequences c onsequences of enforcing legal prohibitions against employment discrimination Crucial question is whether gains from fr om eliminating discrimination outweigh costs of legal enforcement, and whether a legal legal prohibition is superior to deterring deterring discrimination through competitive pressure of the market Limits legal intervention in the economy in order to foster competition in free markets Prefers system of private decision-making over legally enforced rules

 

Explains prominent role of management discretion as a defense to claims of employment discrimination Does not guarantee results of that completion or even the opportunity to gain talents necessary to prevail in that competition Court does not always defer to employer’s judgment of merit, but rather makes

determination based on independent standard of merit While this theory, taken to its logical end, would argue against any regulations, economists don’t take it that far, offering two theories to explain the continued presence of discrimination “Taste for discrimination” by coworkers, customers, or employers themselves 

Increases cost of employing black workers Statistical differences in measuring productivity of black and white workers More difficulty, and therefore more costly, to predict productivity of black workers This theory appeals to stereotypin stereotyping g Everything depends on assessment of consequences, not upon any presumption that discrimination is a particularly serious evil that must be eliminated Remedial: Eliminate effects of discrimination

Emphasizes degree to which consequences of past discrimination are likely to persist in absence of broad and vigorous enforcement of civil rights laws Deeper inquiry into social consequences of past discrimination and greater weight to cost of discrimination in any form Expands historical perspective to consider continuing effects of past discrimination Frequently invoked to justify affirmative action and imposition of liability upon employers for neutral practices with discriminatory effects Supports conception of equality ensuring greater degree of fairness in acquiring relevant qualifications Guarantees right to compete, but not right to succeed Has become more controversial as era of open discrimination has faded

Individual Claims of Intentional Discrimination

 

Constitutes majority of employment discrimination cases Most heavily litigated issue is definition of intentional discrimination

Worked out through shifting burdens of proof Language “because of” supports interpretation in terms of reasons for action   Both damages and equitable relief are available for intentional discrimination discrimination

Only equitable relief available for disparate impact Title VII of the Civil Rights Act of 1964 § 703(a)

Main prohibition of Title VII, preventing making employment decisions because of race Framed according to negative conception of equality Heightened scrutiny of employers’ decisions, both by law and in practice

McDonnell-Douglas v. Green Facts: company refused to rehire a fired employee who was a civil rights activist P claims employer refused to rehire due to race D claims it was due to participation in demonstrations disru pting employer’s employer’s operations operations  Decided on issue of pretext  of pretext   Establishes intellectual framework for individual claims of disparate treatment Made shifting burdens of proof a dominant theme in employme employment nt discrimination law Only actually allocates burden of production, burden of persuasio persuasion n always remains on P Framework for evaluation of claim” 

P must establish prima facie case by showing: Belongs to a racial minority  Applied for and and was qualified for a job for which employer employer was seeking applicants applicants May be particularly difficult to demonstrate that P was qualified, qua lified, although this wasn’t an issue here bc P had formerly been employed in same capacity and was laid off

Despite qualification, was rejected; and  After rejection, rejection, position remained remained open and employer continued continued to seek applicants applicants from  persons of of complainant’s qualifications qualifications 

 

If P carries this burden, D has burden to articulate a legitimate, nondiscriminatory nondiscriminatory reason  for rejection This encourages D (who has greatest access to information about why the person was rejected) to actually offer up evidence, rather than merely stonewalling the P and remaining silent Essentially just gives P somethin something g to attack in demonstrating pretext Can be difficult when the real reason is something non-discriminatory but not something that the employer wants to reveal, but generally not a high hurdle If D carries this burden, P has burden of showing pretext  showing  pretext   Definition of pretext relies heavily on definition of intentional discrimination Most cases will come down to this element Must provide not only that proffered reason is false, but also that true motivation was race The reason can be shown to be a pretext either: Directly: Demonstrate that the employer had actual intent to discriminate Indirectly: Demonstrate that the employer’s reason  was not a sufficient basis for making the decision that it did

Significance of burden of proof Burden of production controls access to jury Burden of persuasion rarely matters as a technical matter, but can present rhetorical advantage rols timing of presentation of evidence, which is in judge’s discretion  Neither burden cont rols D’s Rebuttal Burden: to articulate a legitimate, nondiscriminatory reason for not hiring P St. Mary’s Honor Center v. Hicks 

Facts: Alleged discriminatory discharge of guard Employer offered explanation that P had violated rules, which was discredited on the basis that others had not been fired for the same offense District court found for employer on basis that while proffered reason was pretextual, real reason was personal vendetta of a supervisor, not racial discrimination Court of appeals reversed on basis that discredited reason required judgment for P

 

Issue: Whether the P can prevail simply by discrediting the legitimate nondiscriminatory reason offered by the D SCOTUS: Just because the P establishes the initial prima facie case or demonstrates pretext, does NOT mean that the jury must find in favor of the P  Jury may find that that the employee employee was fired for for a reason other than that that given by an employer, but if it’s not due to discrimination, then the employer will not have violated Title VII

 A prima facie showing showing satisfies the the burden of production, but but does not necessarily necessarily (though it can) satisfy the burden of persuasion Prima facie case is necessa necessary ry and sometimes, but not always sufficient suffici ent to make a finding of liability Furnco Construction v. Waters Facts: Hiring of skilled workers by word-of-mouth resulting in alleged discrimination against black workers District court found for D but court of appeals reversed D had not rebutted P’s pri ma ma facie case

Historical discrimination against blacks required a hiring procedure more accessible to blacks SCOTUS: Making out prima facie case is NOT equivalent to a finding of discrimination No requirement that D use a selection procedure likely to attract the most black employees

After-Acquired Evidence and Mixed Motives § 703(g)(2)(B): 703(g)(2)(B): Concerned with remedies in “mixed motive” cases, those in which employer was motivated by prohibited factor, but is also motivated by legitimate reasons

May grant declaratory relief, injunctive relief, attorney’s fees, and costs but no damages or order of rehiring (i.e. compensatory relief) Mixed motive defense generally available only at remedy stage of case Analytically distinct from issue of pretext under McDonnell-Douglas Burden of production and persuasion shifted entirely to D on this issue McKennon v. Nashville Banner

 

Facts: Claim under ADEA of discriminatory charge. After discharge and filing of claim, D learns of P’s copying of confidential documents  After acquired evidence: employer learns after discharge about employee’s misbehavior that occurred during employment District Ct granted summary judgment for D despite admission by D that P was originally discharged due to her age, affirmed by Ct of App SCOTUS: Reversed; after-acquired evidence evidenc e may be applied only in the remedy stage, but not to initial finding of liability Requires direct evidence of discrimination in order to shift burden to D to prove mixed motive Limits the remedies, but does not foreclose the claim During remedy phase, back pay from date of discovery, not from date of misconduct After-acquired evidence can make size of P’s award somewhat arbitrary, because date of discovery has nothing to do with gravity of D’s wrongdoing Price Waterhouse v. Hopkins

Facts: P is woman who was denied promotion at firm because she acted aggressively “for a woman”   Individual claim of intentional discrimination Burden of proof on P to show that sex was motivating factor in the failure to promote If discrimination found, then burden shifts to the D to prove that it would have made the same decision anyway without considering sex Reason for denial of partnership Hopkins did not behave like a woman should Comments of partners in their evaluations, some of whom had never met her Do we expect men and women to behave exactly the same way? Hopkins was overly aggressive and harsh Particularly to staff member memberss If she had been a man acting this way, it would not have been considered a problem

 

In order to establish at Title VII violation, the P does not need to assert that her  protected class status was the sole reason for the the employment decision (but-for cause is not required) P can assert that it was merely one motivating factor, among others considered in the company’s employment decision-making process The court permits this type of claim due to its interpre interpretation tation of the statutory language language “Because of”: The court says that this phrasing indicates that protected class status cannot play even a minor role, and thus does not need to be the sole basis for the decision

 A P can concede concede that both legitimate legitimate and illegitimate illegitimate reasons reasons were considered considered in the decision making process –  this  this establishes the basis for a mixed motives claim Employer is entitled to an affirmative defense when a P brings a mixed motives claim that it would have made the same employment decision even if it had not considered the P’s protected class status  Insufficient for the employer to allege that it could have made the same decision, what the employer is required to prove is that it actually would have made the same decision  Affirmative defense defense allows the the employer to assert assert that the legitimate reasons reasons that that were considered were sufficient in making the employer decide as it did If P has proven illegitimate motive was a substantial factor  in  in the decision, burden of  persuasion shifts to D to prove by a preponderance preponderance of the evidence evidence that it would’ve would’ve reached the same decision absent illegitimate motives “because of” language does mean “but for” causation 

If there is direct evidence evi dence of intent to discriminate, D should not be given the same presumption of good faith as in McD (prima facie case should be stronger) Purpose of McD prima facie case c ase is to compensate for the fact that direct evidence is difficult to come by What is enough to shift burden? Direct evidence of intent to discriminate based on protected status Stray comments in the workplace, remarks by nondecisionmakers or statements by decisionmakers unrelated to the decisional process are not enough to shift burden to D Benign consideration of race and gender okay –  always “play a role” in employment decisions bc decision makers are aware of these things and may comment on them in neutral and nondiscriminatory fashion

 

Need evidence that illegitimate factor was a substantial factor such that a reasonab reasonable le  factfinder could infer infer that decision was bc of P’s protected protected status, status, only then will will burden shift to D If P fails to satisfy this threshold threshold,, then the McD-Burdine framework framework will apply

Retaliation § 704(a): Unlawful to discriminate against against an employee for protesting practice unlawful under Title VII or for filing a charge or participating in the investigation of a charge under the same

First clause protects opposition by self-help, and has generally been more narrowly construed than the second Raises question of what qualifies as appropriate form of protest Clause has been read more expansively with respect to permissible aims than to permissible means Employment practice need not actually be illegal, just need to have a reasonable belief Employment that it’s prohibited by Title VII   Participation claims generally follows structure of proof of McDonnell Douglas Proof of retaliation claims raise value of potential recovery in two ways Greater chance for wining sympathy of jury on underlying claim Justifies award of punitive damages Burlington Northern & Santa Fe Railway Co. v. White Facts: Female railroad “tack laborer” brought suit against employer and then had her

 job duties changed to less desirable desirable ones P was not actually fired and the new duties she was assigned were still in her job description, just less favorable than the job she had already been doing Title VII’s anti -retaliation -retaliation provision forbids:

Employers from treating an employee worse The severity of the treatment which is necessary to assert a claim is that which would be materially adverse to a reasonable applicant/employee It must be harmful to the point that it would dissuade a reasonable worker from making or supporting a charge of discrimination This includes both on- and off-work retaliatory mistreatment mistreatment

 

However, P does not need to show that the employer discriminated against this employee because the employee belonged to a protected class Because the employee The opposition clause: “opposed any *employer+ *employer+ practice” (which is illegal il legal under Title VII), or The participating clause: “made a charge, testified, assisted, or participated in a Title VII proceeding or investigation” 

Title VII prohibits a broader scope of employer conduct under its retaliatory  prohibition than it does under its discrimination provision An employer is only liable li able for discriminatory conduct that is work related, but can be liable for retaliatory conduct that takes place both on work AND off work The purpose behind granting broader limitations is that retaliatory conduct is used to coerce employees from not reporting and used to cover up employer’s discrimination   To effectively weed out retaliation (which will also aid in eliminating discrimination in general), employer’s retaliatory c onduct must be prohibited to a greater extent than actual discriminatory conduct The anti-retaliation provision holds employers liable for conduct which would be materially adverse to reasonable employee Minor retaliatory actions must be tolerated by the employee (such as talking behind their back or being rude), but will be actionable if it rises to the level of “material harms” (conduct that would deter a reasonable employee from seeking Title VII protections Reassignment of job duties can, depending on the circumstance Reassignment circumstances, s, satisfy the material harm criteria Title VII’s anti -discrimination provision protects employees’ employees’ status, and the anti retaliation protects their conduct

Class Claims: From Intentional Discrimination to Disparate Impact Class-wide claims Procedurally different from individual claims, usually brought as private class actions or government pattern or practice actions

 

individual claims in theories of liability Substantively different from individual

Class-wide disparate treatment under Teamsters and Hazelwood Class-wide disparate impact under Griggs Burdens of proof are heavier and therefore more significant than in individual claims Greater reliance on statistics and other forms of expert evidence Evidence against employer tends to be more difficult to find, but when found carries much greater weight

Disparate Treatment or Intentional Discrimination Claims combine statistical evidence of objective effects with need for a finding of subjective intent

Statistical evidence becomes necessary bc there is rare ly a “smoking gun” such as a statement from the employer, to prove discriminatory intent, so courts have to work backwards from evidence of effects Gap btw these two parts had lead courts to require proof of individual instances of intentional discrimination to make a connection between the two Practical necessity of such evidence bc such a widespread pattern of intentional discrimination should surely result in some individual instances of intentional discrimination Prevents effective imposition of a quota system Statistical evidence must be allowed as proof in such cases bc the practical considerations of having to make out thousands of McDonnell Douglas cases would result in huge costs of litigation and massive under-enforcement of Title VII International Brotherhood of Teamsters v. United States

Facts: Class-wide claim of disparate treatment in promotion of black and latino workers to higher paying line driver jobs from lower paying city driver jobs Suit against union rather than than employer bc the union had much greater control over the promotion decisions they bargained for than the employer itself Employer could have stepped in, but fear of strikes and disruption of labor force, so  probably thought thought it was easier easier to l et et gov’t challenge union instead   P’s burden of persuasion: more than the mere occurrence of isolated or “accidental” or sporadic discrimination acts –  must  must establish by preponderance of evidence of that racial discrimination was the D’s standard operating procedure 

 

Theory of pattern and practice: Evidence of a long-lasting and gross disparity btw workforce and general population may be significant even if Title VII imposes no requirement that a workforce mirror the general population Long-lasting disparity, unless explained away, creates a presumption of discrimination bc “in time” it would be representative  Showing that the stats do not reflect the pool of qualified job applicants would also be relevant Gov’t made out prima facie case by using stats comparing % of minorities in job and % in local labor market and by using anecdotal evidence

Assumes that people in labor market have skills necessary or that employer can do on the drop training easily Must be uncategorically a “better job” – i.e. that minorities would definitely want that  job

Teamsters attempted to rebut evidence in 2 ways Argued § 703(j) precluded the statistical comparison SCOTUS rejects this argument bc the statistical evidence was NOT admitted to show that employer is required to have a racially balanced workforce workforce Statistics are probative bc such imbalance is a tell-tale sign of purpose purposeful ful discrimination  Absent explanation, explanation, it is ordinarily ordinarily to be expected expected that non-discriminatory non-discriminatory hiring hiring  practices will in time result result in a work work force more more or less representative representative of of the racial and ethnic composition of the population in the community from which employees are hired Low personnel turnover, rather than post-Title VII discrimination accounts for some statistical disparities Rejects this argument –  it  it would be different if the employer had done virtually no new hiring since Title VII The company’s inability to rebut the inference of discrimination came not from a misuse of stats, but from the “inexorable zero”   Hazelwood School District v. United States

Facts: Claim of class-wide intentional discrimination against suburban school district in hiring black teachers over 1972-1973 Basis for pattern and practice claims History of alleged racially discriminatory practices

 

Statistical disparities in hiring Standardlesss and subjective hiring process Standardles Specific instances of alleged discrimination against 55 black applicants Dispute between courts over what the relevant applicant pool is Should only those in surrounding suburban area be considered, or all teachers in city area as well Higher proportion of black teachers in city than in suburbs District court compared proportion of black teachers to proportion of black students and  found no discrimination discrimination Demographics of students are dependent on zoning of district, whereas teachers may be drawn from a larger population Court of appeals reversed, finding discrimination Complex method of statistical analysis Under influence of Title VII, most employers have largely abandoned explicit discriminatory practices with obvious effects on large numbers of employees  As statistical disparities disparities get smaller, smaller, need more more precise method method for analyzing analyzing statistics Expert witnesses become essential in such cases Three steps to make comparison of teaching staff to qualified public school teacher population in the relevant labor market: Examination of presence or treatment of minority in relevant labor market Must be defined according to job allegedly involving i nvolving discrimination Must take into account qualification requirements of job If not qualifications required or qualifications qua lifications are easily obtained, general population can serve as as a reasonable proxy

Must be defined in geographical terms, often limited to area surrounding surrounding place of employment However, this excludes portions of the population that might be willing to relocate or commute from further distances for the job

Must look at pool over relevant time period Use of applicant-flow statistics

 

Can be used in place of population statistics to more precisely identify who is actually interested in the particular job, both within geographic area and outside of it Disadvantage is that it may reflect distortions in proportion of minority applicants due to deterrent effect of known discrimination/reputation or from affirmative action efforts to recruit minorities

Determination of how same group is treated by D employer Must look at employment statistics during relevant time period, usually defined by Title VII or statue of limitations Must also look at relevant statistics Just looking at labor force might reflect cumulative effect of past discrimination not covered by claim More accurate to look at pool of employees hired (or equivalent) over relevant period But may consider impact of past p ast discrimination to support inference, even though that discrimination is not actionable District didn’t actually change hiring practices after Title VII, so this evidence carries greater weight  

Comparison between figures generated by first two steps to determine whether they support inference of intentional discrimination Statistical significance: what is the threshold where statistical disparities can no longer be considered to result solely from chance? Usually concerned with Type I errors, risk of finding discrimination where none actually exists Size of pool considered impacts how large a discrepancy is acceptable

Issue of practical significance: even if evidence is statistically significant, is it enough to  justify an inference inference of intentional intentional discrimination In a sufficiently large applicant pool, any disparity might be statistically significant but might not be enough to justify finding Difficult to believe that a discriminatory employer would hire almost, but not quite, the same percentage

Disparate Impact or Discriminatory Effects Statutory basis

§ 703(j): no requirement of preferential treatment to any individuals or groups due to imbalance in existing work force §703(k): burden of proof in disparate impact cases: Unlawful practice established if

 

P demonstrates the D uses an employment practice that causes a disparate impact and D fails to demonstr demonstrate ate that challenged practice is job-related or consistent with business necessity; or P makes a showing of an alternativ alternative e employment practice that is equally effective but does not have this effect and D refuses to adopt that practice § 703 (i): employer may not adjust test scores or use different differe nt cutoff scores for employment related tests on basis of protected class Disparate impact summary:

Differs from class-wide disparate treatment in both ultimate fact to be proven (discriminatory effects vs. discriminatory intent) and shift in burdens of production and  persuasion Shifting burdens under disparate impact P must prove disparate impact of employment process Under current standard, P’s burden should be analyzed along same lines as in Hazelwood

Beyond that, unclear what P must prove Must establish that a particular employment practice resulted in disparate impact or can demonstrate that elements of decision-making process cannot be separated out, in which case process is treated as a single employment practice

If P succeeds, D must prove that disputed practice is justified by “business necessity” or is “related to job performance”  

Unlike in disparate treatment, where burden of persuasion is always on P, in disparate impact, burdens of both production and persuasion fall to D on the issue (see §701(m)) If D carries its burden of proof, P must prove that offered justification is pretext for discrimination Legal doctrine first recognized in Griggs v. Duke Power Co., later codified by the Civil Rights Act of 1991 in § 703(k) Claims of disparate impact have no constitutional basis, purely statutory Statute is really concerned with hidden discrimination that might not be provable through traditional claims of intentional discrimination It is difficult to prove intentional discrimination in such cases, so rather than forcing Ps to come up with evidence of corporate intentions, we presume that they intend the natural consequences of their actions

 

Legislative history shows that congress was very much concerned with hidden discrimination, which the theory of disparate treatment can’t really reach   Two views of disparate impact theory:

Designed only to prevent hidden discrimination Would result in liability only when there is evidence of disparate treatment not strong enough to justify finding of intentional discrimination Would impose significant but not overwhelming overwhelming burden on employer to show that disputed practice is related to performance on job Designed to discourage employment practices that disproportionately exclude minorities and women Would result in liability in absence of evidence of disparate treatment Would impose heavy burden of justification on employer Would eliminate neutral practices that impose i mpose systematic disadvantages upon minorities and women Relationship to affirmative action:

Both concerned with class-wide results  Adopting affirmative action eliminates eliminates disparate impact, so theory of disparate impact encourages affirmative action as a mechanism of relieving employer of threat of liability and burden of proof in justifying disputed employment practice Magnifies deterrent effect on employer of other theories of liability Congress has disclaimed any intent to require affirmative action (§ 703(j)) Griggs v. Duke Power

Facts: Requirement of high school diploma and passing scores on two general intelligence exams for hiring or promotion to higher-level departments Disparity of completion rates for high school between blacks and whites Requirement only imposed when employer abandoned segregation just before effective date of Title VII No black workers employed in higher-level department until judicial proceedings began Employer offered no justification for practices other than desire to improve overall quality of work force

 

 Ambiguous as to how broad is, how heavy the broad or narrow theory of disparate impact is, burden on D is Difficult showing of business necessity or easy showing of relationship to job performance Imposing too heavy a burden to prove business necessity takes away discretion of employers in hiring and essentially imposes a quota system But imposing too light a burden essentially transforms transforms class claims of disparat disparate e impact into individual claims of disparate treatment treatment Structure of burdens of proof P has burden to prove adverse impact of an identifiable employment practice on a particular group (§ 703(k)(1)(B) D then has burden to justify disputed practice as “job related for the position in question and consistent with business necessity” (§ 703(k)(1)(A)(i) 

If an employment practice which operates to exclude blacks cannot be shown to be related to job performance, the practice is prohibited Reconciling § 703(h) which allows for tests  Authorizes the the use of “any professionally professionally developed developed ability test test that is not designed, designed, intended, or used to discriminate bc of race”  

EEOC has interpreted this to permit only job-related tests Could not apply to high school diploma requirement P has burden to prove pretext Difference from McDonnell Douglas Both P’s burden (show class -wide effects) and D’s burden (show business justification) are much heavier Both burden of persuasion and burden of production shifts to D Most cases decided the issue of adverse impact or business justification rather than on pretext Introduces issue of inferior educational opportunities and lower rate of high school graduation for blacks in support of decision, which makes decision controversial Tagging employer for discrepancy in high school graduation rates makes employer responsible for social conditions

 

To allow them to make decisions in this manner rather than developing an alternative,  job-related qualification system would allow employers employers to add to the cumulative cumulative effect of past discrimination View of disparate impact not as reaching hidden discrimination but as trying to compensate for past discrimination Albemarle Paper v. Moody

Facts: Prior segregation into lowest jobs. When formal segregation ended, former “black” lines were given less seniority for promotions than “white” lines, locking blacks into lower-level jobs As a condition for promotion, required high school diploma and passing two intelligence tests Study conducted to justify job-relatedness of qualifications, but study results in little statistically significant correlation, and in some cases negative correlation Straightforward approach approach of Albemarle was to justify allegedly discriminatory employment practice This approach is much harder than it seems, as evidenced by the attempt at validation of the tests in that case Validation Attempt to connect good scores on tests with good performance on the job Problems in this case Weak results were inconsistent and lacking statistical significance Would expect to find at least modest correlation btw test scores and job performance, but don’t even find that  

In some instances, there is even negative correlation Study focused on job groups near the top of the various lines of progression rather than the jobs that employees were actually applying to be promoted to Reliance upon supervisors’ subjective evaluations of job pe rformance in determining correlation

No way of knowing if each supervisor was considering the same criteria, and if it was applying that criteria in the same way These supervisors are the same people who made hiring and firing decisions, and therefore have vested interest interest in providing evidence in favor of the employer

 

No evidence that this was a double-blind study Sample used in study was not represent representative ative of the actual applicant pool Dealt only with job-experien job-experienced ced white workers, rather than young, inexperienced black workers Those who were already in the job had the benefit of on-the-job experience, which would boost their performance on the tests This is not the group who would actually be taking the test for promotion

This is a good strategy, but was not well-executed Role of EEOC guidelines Simply as guides, not binding authority on the courts More lenient Uniform Guidelines now in effect Any empirical proof of validation is likely to be difficult, raising choice between week or strong version of theory of disparate impact and light or heavy burden of proof on employer In light of this decision, the only way for an employer to really head off a claim of disparate impact is to layer an affirmative action program on top of the test to eliminate disparate impact of program as a whole Difficulty in developing perfectly tailored test Does little to eliminate hidden discrimination in the system Washington v. Davis

Facts: Discrimination alleged in verbal ability test used by DC Police Department Both constitutional and statutory claims, although although none directly under Title VII th

Constitutional claim made under due process clause (5  amendment), which requires  proof of intentional intentional discrimination discrimination Constitutional Constitution al does not recognize disparate treatment treatment claims Statutory claim made under obscure civil service laws that apply only to DC Concession by D that these laws are interprete i nterpreted d just like Title VII Evidence in this case On verbal ability test, pass rate for blacks is far lower than pass rate for whites

 

Less than half of recruits since passage of Title VII are black Proportional to blacks in metro area, but about 72% of applicants were black and about 50% of those who passed test were black Evidence of intentional discrimination Company had been extending recruiting efforts to include more minorities, instituted  programs to boost minority  programs minority pass rates on the test, imposed affirmative affirmative action program program in post-exam promotion decisions If this were a case of disparate treatment, this would be strong evidence in defense of the employer Validation under the Uniform Guidelines Content validation: content of test is “representative of important aspects of the job”  

If job consists of more skills than just those tested, a test of those skills is not enough to  provide content content validation Criterion validation: statistical correlation btw good test scores and good job performance according to some criterion, usually supervisors’ evaluations  Needs to be statistically significant, and needs to be strong evidence Tends to be very expensive and risky Construct Validation: between an abstract ability, such as intelligence, and good job performance Construct validation tends to be exceedingly difficult to prove We tend to be very skeptical of such correlations They tend to rely on criterion validation in order to prove Validation study in this case Not content validation bc verbal ability alone is not a part of a policeman’s job 

Possibly construct validation, but no general showing of connect btw verbal ability and  police performance performance Criterion validation between good performance on verbal ability test and good  performance  performan ce on training test test But no connection between training test and job Common sense validation

 

SCOTUS takes judicial notice of duties of police officers requiring verbal ability in ruling for Ds Regards communication communication ability as essential to the job of police officer Reduces employer’s burden of justification 

Moves toward weak version of the theory of disparate impact, perhaps in response to weak evidence of intentional discrimination Case provides strong support for employers Dothard v. Rawlinson

Facts: extension of theory of disparate impact from race to sex in exclusion of women  from “contact positions” positions” with male prisoners prisoners upheld as BFOQ BFOQ  Neutral height and weight requirements struck down bc of disparate impact P’s evidence of adverse impact found to be sufficient based on general labor market  figures

Women are 37% of the labor force in i n AL Labor force statistics more appropriate than general population figures because women did not participate n labor market at same rates as men  Applicant flow statistics statistics also not appropriate appropriate because because not even even though not not all women want to be prison guards, if height/weight requirement is already known, might discourage women women of that size from applying in the first place History of discrimination can skew applicant flow numbers Effect of height and weight requirements: Excludes 41% of women, but only 3% of men Using labor market figures, 37% those in pool are female 27% of those in who pass requirements are female Uniform Guidelines impose “four -fifths” rule on pass rate: 

Pass rate for men is 97% for men and 59% for women th

This fails the 4/5  rule Pass rate would need to be 77% to avoid justification for finding of disparate impact D’s business justification based on common sense is inadequate 

 

Failed to produce evidence of correlation btw height/weight and strength, the supposedly sought-after characteristic Also raises question of why employer uses this requirement rather than a strength test No need for SCOTUS to choose btw weak version of theory of disparate impact with light burden of proof on employer or strong version of theory with heavy burden of proof on employer Comparison with method in Hazelwood: Same general approach to statistical evidence (comparison of composition or labor market and pool of those hired for statistical and practical significance) Presumably a smaller difference would be sufficient to show discriminatory effects rather than discriminatory intent Wards Cove Packing v. Atonio

Facts: Claims of disparate impact in segregation between whites in higher paying “noncannery jobs” and minorities in lower paying “cannery jobs”   Skilled positions are entirely white (mostly college students from pacific NW) and nonskilled jobs are mostly Filipino (hired through Filipino-dominated Filipino -dominated union) and Alaska natives Long history of segregation in this seasonal work Alleged employment misconduct is objective and subjective: nepotism, rehire preference, lack of objective hiring criteria, separate hiring channels, practice of not promoting from within, word of mouth hiring SCOTUS says Ps have not even made prima facie case of discrimination Ct of App compared racial composition of cannery and noncannery workers and said this was a prima facie case of discrimination This is wrong bc employer could eliminate the prima facie case by merely integrating the unskilled positions by hiring more whites for cannery positions SCOTUS says this is the wrong comparison – should compare the racial composition of the job and the racial composition of the qualified population in the relevant labor market (borrowed from Hazelwood) If those labor market stats are difficult to obtain, should look at the composition of the “otherwise -qualified applicants” for at -issue -issue jobs Given the remote and seasonal nature of the work, it would be virtually impossible to  figure out what what the relevant relevant labor poll is (how (how many people people are willing to do this this work?)

 

SCOTUS holds that specific causation must be shown in a disparate impact case to establish a prima facie case of discrimination P must show a statistical disparity AND must identify the specific employment practice that is being challenged P must show a causal link btw challenged employment practice and racial imbalance Consequence of this: when P narrows claim to a specific practice, it is easier for D to say Consequence there’s no causation  Business necessity phase Employer’s justification need not be “essential” or “indispensable” to the employer’s business Only requires a “reasoned review of the employer’s justification” 

P retains Burden of persuasion at all times, only burden of production shifts If P shows that there a re alternative practices available, P wins This shows that the D’s argument is a pre text for discrimination

Alternative must be equally effective (costs and burdens on employer are considered) Congress overrules Wards Wards Cove with the Civil Rights Act of 1991

§703(k): provides a statutory basis for disparate impact P must establish that the D uses a particular employment practice (in the case of more than one practice, P must demonstrate that each ones causes a disparate impact unless elements of D’s decision making process makes the practices inescapable of separation for analysis) that causes disparate impact on the basis of protect class AND D fails to demonstrate the practice is job related and consistent w/ business necessity, OR That there are alternative employment practices that the D refuses to accept D has the burden of persuasion in demonstrating business necessity Business necessity means what it did before Wards Cove P must show a particular employment practice, but §703(h)(1)(B)(1) deals with situations where the various employment practices cannot be separated for analysis Ricci v. DeStefano

 

Facts: firefighters took an aptitude test that would determine promotions, results seemed like they would have disparate impact on minority test-takers, test-taker s, so department threw out test results, denying white test takers of their expectation of promotion based on their investment doing well on the test It is impermissible for employer to engage in intentional discrimination, even against racial majority, to avoid potentially being held liable for disparate impact claim Unless employer can demonstrate that it had a “strong basis in evidence” that it would be held liable if it had not taken action SCOTUS: Employers should act in a colorblind way This police promotes employers to only consider race/gender once a suit has been brought Then only to correct inappropriate policies and practices Employers should not proactively spend time and money trying to prevent future discrimination claims from being brought They should instead ignore these differences during their day-to-day operations Be careful in the first place and then follow through with the plan Don’t continually monitor it  

If you are careful in the beginning, then you will likely have a valid basis for a business necessity defense Once the employer has established a police/standard as its selection criteria, the employer should not be able to readily change it at will To do so would upset employee’s legitimate expectation interests 

Title VII absolutely prohibits racial preferences, regardless of whether group being given preferential treatment belongs to majority or minority

Sex Discrimination Under the Equal Pay Act and Title VII Formal interpretation of the prohibition against sex discrimination in Title VII Bennett Amendment has been narrowly construed to prohibit all forms of intentional sex discrimination with respect to pay

Claims of sex discrimination can also be established under theory of disparate impact

 

discrimination on basis of gender is to be treated just as Working hypothesis that discrimination discrimination based on race in absence of compelling reasons to the contrary make enforcement of prohibition against sex discrimination easier to achieve and compliance more forthcomi f orthcoming ng

 Also avoids controversial questions about about appropriate role of gender in public life Department of Water and power v. Manhart

Facts: Sex-based actuarial tables used to compute pension benefits payable upon retirement Required women to pay more than men for the same pension benefits based on longer life expectancy of women Explicit classification the basis of sex SCOTUS: while employers are free to make cash payments to employees to purchase benefits from independent insurance companies that might use discriminatory tables, employer may not impose such discriminatory costs for self-administered program Decision can be viewed through idea that Title VII protects individuals, not groups If program is going to differentiate between between employees at all, must consider Court refused to make decision retroactive, due to concern about solvency of existing  pension plans

Equal Pay Act of 1963 Equal pay act enacted one year before Title VII

Narrow prohibition covering only sex discrimination, only in compensation, and only when men and women perform equal work Inequalities cured by raising pay, not lowering Enforcement under Fair Labor Standards Act, federal minimum wage laws 29 U.S.C. §206(d): must pay equal pay for equal work except where such payment is made pursuant to some seniority system, merit system, system measuring quality or quantity of production, or some other factor other than sex Congress specifically rejected “comparable work” standard in favor of “equal work” standard

Endorsing management discretion and market as best means of setting pay (economic  perspective)

 

P has burden of proving that work performed by members of both sexes is “substantially “substantial ly equal” according to skill, effort, responsibil responsibility, ity, and working w orking conditions  conditions 

If P carries burden, D must prove that one of the four exceptions justifies difference in  pay Corning Glass Works v. Brennan

Facts: Night shift workers (men) are paid more than day shift workers (all women) SCOTUS: night shift work and day shift work are “Equal work” performed under similar working conditions The time of day worked is not a “working condition” in this case  Employer’s corrective action was inadequate in preserving the night shift wage differential (but allowing women to work nights), since the Act prohibits any action to reduce wages

This inequality is cured by integration and giving women the full f ull double differential rather than by raising pay by sex-based differential Title VII and Equal Pay Act

Reconciling broad prohibition of Title VII with narrow prohibition of the Equal Pay Act Regardless of how plausible the sex-based differences seem (ability to lift a certain amount of weight, etc.) they are prohibited by Title VII “Bennett Amendment” to Title VII: allows an employer to differentiate based on sex if such differentiation is authorized by Equal Pay Act This amendment is faulty, however, because the Equal pay Act doesn’t actually author ize differences in pay between sexes To counter this criticism, Court suggested but didn’t rule that Amendment required proof of disparate treatment, not just disparate impact, to prove discrimination under Title VII

Title VII provides less deference to employers em ployers than Equal Pay Act Unlike Equal Pay Act, violation of Title VII may be cured by lowering pay County of Washington v. Gunther

Facts: Female prison guards were paid much less than male prison guards. Their jobs were not substantially equal since the male guards oversaw more prisoners Issue: does the Bennett Amendment restrict Title VII gender pay discrimination claims to equal pay for equal work

 

All men received more than any woman despite employer’s own survey finding female f emale guards’ pay to be too low 

Text of §703(h): Three possible interpretations of “differentiation” on the basis of sex “authorized” by the EPA, providing Title VII permits wage discrimination

For employers not covered by the EPA For employees not engaged in equal work; or For employees covered by defenses (i) to (iv) SCOTUS: Only defenses to (i) tp (iv) “authorize” an employer to allow a difference in  pay

Exceptions for unequal work would allow explicit sex discrimination in pay Opens door to claims of compara comparable ble work under Title VII Legislative history indicates that Bennett Amendment was technical only  Added on floor floor of senate, without without committee committee report Prohibition against sex discrimination added earlier on floor of House Rehnquist’s Dissent  

Defenses are redundant with other provisions of Title VII Seniority, merit, piecework found in § 703(h)  Any other factor factor implicit in §703(a) §703(h) preserves basic policy of the EPA to require re quire substantially equal work, not comparable work Bennett Amendment itself is unclear, and there is not Congressional intent, which leaves us with a judgment call between the majority opinion and the Rehnquist dissent Who is right? Rehnquist on the narrow text of the statute Majority preserves §703(h) and defense (iv) only to cast doubt on claims of disparate impact Majority on the force of the principle against discrimination

 

Does it make sense to prohibit all forms of sex discrimination in pay and work, except those in which work is unequal?

Classifications on the basis of pregnancy §701(k): terms “because of sex” or “on the basis of sex” include pregnancy, child birth, and related conditions

But no provision for abortion benefits except in instances of medical necessity or threat to health of mother Pregnancy is a physical difference between men and women Social differences in family life Raises question about the appropriate conception of equality of sex discrimination Classifications based on pregnancy still covered by BFOQ exception in appropriate circumstances Geduldig v. Aiello

Facts: Constitutional decision regarding state disability plan for all employees, with limited contributions and limited benefits Exclusions on coverage for disabilities lasting less than 8 days or more than 6 weeks, dipsomania, drug addiction, sexual psychopathy, and normal pregnancy That this is a constitutional case is significant bc in some ways the Constitution is narrower than legislative statute Evaluating claim only under Equal Protection clause, not under Title VII SCOTUS: Classifications based on pregnancy are not classifications based on sex Distinguishes “pregnant persons” from “non -pregnant persons” instead of women from men

 Applies test of economic due due process Policy as a reasonable means on some conceivable facts to a legitimate goal Cost justification: trying to contain benefits of the plan Women already benefit disproportionately from disability plan, mainly due to smaller contributions from lower pay No heightened scrutiny for sex-based classifications

 

f act that only w omen can become pregnant and that Court seems willfully blind to the fact pregnancy is systematically related to sex Pregnancy Discrimination Discrimination Act of 1978 (PDA) overruled Geduldig v. Aiello and amended Title VII § 701(k)

Sex discrimination includes, but is not limited to, discrimination on the basis of  pregnancy, childbirth, or related medical conditions conditions Sameness model: women should be treated the same as other people w/ similar inability to work Newport News v. EEOC

Facts: Limited benefits for wives of male employees, full health coverage for husbands of female employees Resulting distinction between men with pregnant wives, who received lower benefits, and all other employees SCOTUS: this discrepancy in extension of benefits to spouses violates Title VII Had employer not provided spousal benefits for any employees, would not have been a problem Once full benefits were given to husbands of female employees, same coverage could not be denied wives of male employees Formal prohibition against sex discrimination By first clause of §701(k), treat pregnancy like sex

Bona Fide Occupational Qualifications (BFOQ) on the Basis of Sex §703(e): Not unlawful to make classifications based on religion, sex, or national origin where that trait is BFOQ

Very narrowly constructed exception No allowance for consideration of race Not must used for national origin because it overlaps too much with race Raises questions about differing legal standards for different grounds of discrimination BFOQ applies only to explicit sex-based sex -based classifications Burden of production and persuasion on employer

 

Standards in these cases leave open questions about legitimate role of sex-based differences in defining “essence of business operation” and what constitutes “stereotype characteristics of the sexes”   Concerns about privacy in caretaker positions – is privacy really more easily violated by members of opposite sex than by members of same sex? Dothard v. Rawlinson Upholds exclusion of women from “contact positions” guarding male prisoners due to increased risk of sexual assault and other violent attacks

Concerned not just with safety of women themselves but with general security of prisons Raises question of whether this is based more on sexual stereotype than on actual risk Once you accept fact men also tend to be sexually assaulted, court’s court’ s rationale  erodes

Court quoted, without explicitly endorsing, two tests: Whether “essence of the business operations would be undermined by not hiring members of one sex exclusively”  Whether employer “had reasonable reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved”  

Extensions of BFOQ to appearance cases Employers can have differing standards for appearance for men and women, as long as they are equally burdensome United Automobile Workers v. Johnson Controls

Facts: fetal protection policy at factory, applied only to women, barring them from work unless sterility is proven due to presumption of fertility Replaced policy of only warning of effects of lead No consideration of the fact that not all women are fertile, or of potential effects on men as well Facially discriminatory policy –  fertile  fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job Lower courts erred in treating policy as facially neutral disparate impact case (and allowing application of more lenient business necessity defense)

 

BFOQ defense is more narrow than business necessity defense Evidence that lead affects men’s reproductive health as well   Supported by PDA, which says that discrimination on the basis of sex includes discrimination on basis of pregnancy, though court does not use PDA SCOTUS: overturned court of appeals, says this is not a BFOQ Applies same standard as in Dothard to make clear that employer had burden of proof, both of production and persuasion, in making out a BFOQ No BFOQ bc no threat to anyone other than woman/fetus she might be carrying Court leaves decisions about safety of children to parents Is this BFOQ? Objective test: these objective requirements must concern job-related skills and aptitude  Job-related does does NOT mean whatever employer employer makes makes a job requirement requirement Safety exception to BFOQ Must be concerned with safety concerns of others, not employee only rd 

Unconceived fetuses are neither customers nor 3  parties whose safety is essential to the business of battery manufacturing BFOQ and §701(k): Because sex has been read to include pregnancy, pre gnancy, issues relating to  pregnancy become subject to the BFOQ exception Problem with Johnson Controls is not so much the purpose of the policy (to protect unborn children), but with the way they went about implementing it Although the motivations of the policy are somewhat suspect given that they didn’t   apply the same standard to men

BFOQ imposes burden of proof on D Heavier burden than “business necessity” from theory of disparate impact  Employer’s policy is sex-based, not neutral

Narrow interpretation of BFOQ as only concerned with safety of customers or others involved in manufacturing process Alternative support for majority opinion can be found in constitutional right to reproductive privacy

 

Western Airlines v. Criswell

Facts: Age limit of 60 years old for flight engineers being challenged Mandatory retirement policy at age 60 for pilots and first officers on a commercial flight, but no such rule for flight engineers P’s were denied the opportunity to down-bid from pilot to flight engineer

Sued on the fact that the under-age-60 qualification for the position of flight engineer violated the ADEA 2 Prong Test for BFOQs Need objective justification that qualification is reasonably necessary Some job qualifications are so peripheral to the central mission of the employer’s business that no age discrimination can be reasonably necessary

Age as a proxy for job qualification D can show it has reasonable cause to believe that all or subset of all persons over the age qualification would be unable to perform safely, OR D can establish that age was legitimate proxy for safety-related job qualification by  proving that that is impossible or highly highly impractical to deal deal with older employees employees on an an individual basis  Application of test in case case Prong 1: No question that good health is reasonably necessary, question is how good and how sure does employer have to be Prong 2: Ps argue that age is not a necessary proxy for the qualification of safety Other members of industry did not have such a mandatory retirement age for flight engineer FAA had no mandatory retirement engineer at age 60 as with pilots FAA finds individual testing is NOT impractical

Sexual Harassment Two types of sexual harassment harassment

Tangible employment action Employer held strictly liable, no affirmative defense available

 

Judged from baseline of what employee would have received in absence of harassment Hostile work environment Must be severe or pervasive, in order to get around issues of what is and is not acceptable conduct But no requirement of demonstrative psychological injury Designed to kick in before nervous breakdown occurs Employer may avoid liability if it i t meets both elements of affirmative defense, otherwise vicariously liable for alleged harassment Exercised reasonable care to prevent and correct promptly any sexually harassing behavior How easily an employer can detect a problem depends on the size of the company, mechanismss for employmen mechanism employmentt action, policies, etc. P employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise Creates problem for employer who has acted promptly and appropriately to correct situation if employee has not unreasonably failed to do something Complexities of sexual harassment

Rarely involves official action by employer, but rather action of an employee, perhaps in express violation of employer’s policies  If employee is sufficiently high in management, his actions are directly attributable to company as its alter ego and no affirmative defense available But if harassment is by a same-status employee, employer employer is only liable if negligent in allowing harassment to take place Burden of proof on issue of reasonable care is on P Title VII does not cover harassment by lower-level employees unless that harassment can somehow be attributed to employer Determining when consciousness of sex becomes sexual harassment Depends on surrounding circumstances Objective determination determination in which reaction of particular harassed harassed individual is irrelevant “Reasonable person” standard of determining what constitutes harassment, rather than “reasonable man” or “reasonable woman” 

 

Some critics are concerned about chilling effect this open-ended standard might have on  first amendment amendment free speech speech in workplace workplace Harassing speech need not be obscene to give rise to liability Objections to sexual harassment law as invasion of privacy: none of gov’t business Objections how alleged harassers conduct themselves toward others  Also concern that we don’t want gov’t telling telling employers employers what sorts of politics to maintain with respect to sexual relations btw employees

Constitutional protection of privacy is attenuated in the workplace Meritor Savings Bank v. Vinson]

Facts: P was subjected to sexual harassment by bank manager and also voluntarily had sex with him over a period of several years out of fear of losing her job SCOTUS: Recognizes claim for hostile work environment if advances are unwelcome Distinguishing rape form sexual harassment: sexual relations need not be involuntary if only acquiesced to avoid negative employment action No need to demonstrate actual economic harm to make out claim of hostile work environment Rejected argument that Title VII only covers tangible losses of an economic nature The fact that P has a sex with a harasser is not a defense to sexual harassment Can still show advances are unwelcome Relevant evidence Fact-specific inquiry into whether conduct was unwelcome, whether harassment was severe and pervasive, and whether employee was acting as agent of employer (agency) Evidence of sexual conduct, which tends to put P on trial, although P protected by Federal Rules of Evidence 412 on prior sexual acts Harris v. Forklift Systems

Facts: Issue of what constitutes severe or pervasive conduct SCOTUS: As long as the environment would reasonably be perceived, and is perceived, perceiv ed, as hostile or abusive, there is no need for it also to be psychologically injurious Question of what constitutes “severe or pervasive” conduct   P’s need not show psychological harm 

 

Sexual propositions mixed with conduct Question usually for the jury Reasonable inferences either way Subject to instruction on what a “reasonable person” would think, not “reasonable

woman Factors in determining severe/pervasive conduct Frequency Severity Physically threatening Mere offensive utterance Unreasonably Unreasonab ly interferes with employee’s work performance  Oncale v. Sundowner Offshore Systems Facts: Same sex sexual harassment, including homosexual overtones

SCOTUS: Formal conception of equality based on prohibiting all forms of discrimination Harasser need not be from different group than P Recognized claim of sexual harassment of male employee by other male employees Title VII does not distinguish between men and women as victims or perpetrators Title VII is not considered to cover harassment on the basis of sexual orientation, only sexual harassment based on gender No necessary connection between sexual harassment and sexual sexual conduct Harassment may simply express hostility, such as to presence of women in the workplace Evidentiary role of sexual conduct Homosexual comments or advances But not sexual orientation of P Must be “because of sex”   Distinguish ordinary “horseplay” or “flirtation” as not “severe or pervasive”  

 

Employer liability Direct liability (Resonpedat superior) Employer policy or negligence  Action by high-level high-level managers managers or owners Tangible employment action Indirect liability (agency principles)  All other forms forms of sexual harassment harassment  At least by supervisors supervisors Employer liability subject to defense of Reasonable care to prevent and correct P unreasonably failed to avoid harm Burlington Industries v. Ellerth

Facts: Threats of adverse decisions if P failed to give in to sexual advances, but threats were never carried out, so no “tangible employment action”   Claim must be analyzed under hostile work environment theory To establish claim of hostile work environment, P must prove that alleged harassment was “Severe and pervasive”   Employer may avoid liability if it i t meets both elements of affirmative defense, otherwise vicariously liable for alleged harassment Exercised reasonable care to prevent and correct promptly any sexually harassing behavior How easily an employer can detect a problem depends on the size of the company, mechanismss for employmen mechanism employmentt action, policies, etc. P unreasonably failed to take advantage of any preventative or corrective opportunities  provided by by the employer or to avoid harm harm otherwise otherwise Creates problem for employer who has acted promptly and appropriately to correct situation if employee has not unreasonably failed to do something Tangible employment actions

 

“Significant change in employment status” such as hiring, firing, reassignment with significant change in responsibilities or significant change in benefits, or failure to promote

Inaction apparently can count count as a form of action, but failure to follow through on a threat does not Reject distinction from Meritor between quid pro quo sexual harassment and hostile environment sexual harassment Rationale for respondeat superior liability  Agent “aided in accomplishing the the tort by the existence existence of the agency relationship”  relationship”  

Not a causal connection, which is present for all forms of harassm harassment, ent, even by coco employees But use of authority granted by employer Real rationale for decision Need to preserve respondeat superior liability for all other forms of discrimination under Title VII Imbalance in resources and information Preexisting difficulty of proving discrimination Tangible employment actions resemble ordinary employment decisions Subject to some employer oversight

Disabilities Why protect the disabled? Model of racial discriminat discrimination ion

Purely negative, preventing consideration of disability and reliance re liance on stigma and stereotypes Model of merit is even less helpful to disabled because some disabilities are related to  job performance performance

Tendency to defer to employers Remedial justification

To remedy consequences of disability, not just past discrimination

 

Note that disability can arise from many sources, including heredity, accidents, individual fault Sympathy alone has severe and unpredictable limits Model based on hypothetical insurance agreement, making some determination of what the average person would agree to have covered without w ithout knowing whether or not he would become disabled based on rational calculation of benefits, costs, and risks

Two statutes: Rehabilitation Act: Applies to federal f ederal government, government, federal grants, federal contractors, etc. ADA: Applies to all employers with at least 15 employees, except federal government

 Also covers all public services and public accommodations accommodations operated by private entities Both seek to increase opportunities in public life for the disabled, particularly in employment

Unique use to remedial perspective to compensate for natural disadvantages as well as consequences of past discrimination Identify a genuine protect class of disabled d isabled individuals who receive special protection Duty of reasonable accommodation accommodation has been construed much more narrowly than originally expected, covering only individuals whose impairments are severe enough to constitute disabilities but who are not so disabled as to be incapable of performing essential functions

Covered Disabilities Sutton v. United Air Lines

Facts: Twin sisters with very poor eyesight apply for global airline pilot positions Condition correctable with glasses or contact lenses, but airline requires better uncorrected vision SCOTUS: Mitigating measures should be taken into account in assessing degree of impairment caused by individual’s disability   Contradictory to tort law, in which taking reasonable accommodations accommodations helps that party’s case

Decision makes sense as a necessary limit on scheme of remedial justice

 

cannot cover all disabling conditions  ADA cannot conditions The whole point of an insurance system is that it doesn’t cover normal weakness   If everyone is covered, there’s no way to spread the risk  

Coverage of ADA is restricted to those who are in greater need of assistance, not those who can best take are of themselves Consideration of scope of coverage  Allowing for consideration consideration of uncorrected uncorrected state would have dramatically dramatically increased increased coverage from the estimate provided by congress in introduction to ADA In this case, the corrective measure is clear so there is not perverse incentive, but in other situations this ruling might create an incentive to not treat a disability in order to not lose coverage Consideration of whether working can constitute a major life activity Distinguishes denial of a particular job from denial denial from jobs generally, considers considers availability of other jobs Court leaves question undecided Part of the problem is we don’t want to say that simply having below-average capabilities qualifies as a disability

We get around this by requiring that there be some degree of severity attached Exclusion from single job does not prove that individual would be excluded from a wide range of jobs Employer is allowed to prefer some physical attributes This only violates the ADA when employer makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life act If the impairment does not rise to this level, it is fine to discriminate based on this This determination is done on a case-by-case basis and you may not be disabled if your own body compensates for the impairment The ADA Amendments of 2008 Disapproved of SCOTUS reasoning in Sutton restricting requirements for coverage by Reducing the effects that P’s impairment needed to have  

 

Expanding the list of major life activities that could be affected Expanding the impairments that could be “regarded as” disabilities   Toyota Motor Manufacturing v. Williams

Facts: Claim for reasonable accommodation of carpel tunnel syndrome P was reassigned to another job after getting carpal tunnel, but injured herself and sued D for failing to provide reasonable accommodations accommodations SCOTUS: impairment must prevent or restrict performance of “tasks of central importance to most people’s daily lives”   Underlying concern about coverage of moderate and widespread disabilities, as in Sutton Coverage through work as a major life activity, again assumed by not decided, as in Sutton Cost of various accommodations Transaction costs of compliance The more broadly we define what constitutes a major life activity, the more stringent the proof required that one suffers in that manner must be Limiting interpretation Dictionary definitions of “substantially” and “major” 

Vague standards obscuring cost of coverage of all impairments Need to focus on those who cannot compensate for their impairments Requirement of permanent or long-term disability that prevents or severely restricts activities “of central importance to most people’s daily lives”  Working may be considered a major life activity, but it can’t be that the disability only  prevents the individual from working working this specific specific job Cleveland v. Policy Manageme Management nt Systems

Facts: Interaction of ADA and SSDI (disability insurance) Tacitly, P wants every sort of aid available Structurally, the statutes provide different aid for disabled Employment under ADA

 

Payments under SSDI Possible for P to seek aid under both Problem here is that in order to get disability insurance, P must claim that she’s incapable of holding any sort of job But to file claim under ADA, she must be able to prove that she’s capable of performing the job with reasonable accommodation

SCOTUS: under some circumstances P can obtain both benefits Proof need to get disability benefits could be used to defeat claim under ADA How to protect ADA claim SSDI doesn’t take into account the possibility of reasona reasonable ble accommodation, so you can make claim by basing SSDI application of non-accommodated non-accommodated ability to work while  proving in the the ADA claim that with with reasonable reasonable accommodation, accommodation, P could still work work There’s an element of bad faith that enters  

Possibility of presenting the progression of the disability, that at first P was not capable of working, but over time she regained the ability to work and now wants to enter work  force Different definitions of disability SSDI concerns disability from performing almost any job No inquiry into reasonable accommodations Coverage Coverag e of temporar temporaryy disabilities Incentives to move back to work ADA requires only “substantial limit on major life activity” 

Enforced through litigation Cost not spread through government funding

Discrimination and Reasonable Accommodations Statutory basis in ADA §101(3): Definition of “direct threat” as significant risk to others that cannot be eliminated with reasonable accommodation

§101(9): Definition of reasonable accommodation

 

§101(10): Definition of undue hardship and factors to be considered §102(b)( 5): 5): “discriminate” includes not making reasonable accommodations accommodations for known disabilities, unless that accommodation would impose undue hardship §103(b): Qualification standards may include requirement that individual not pose direct threat Disabilities which are too severe to be remedied through reasonable accommodation render individual unqualified

Whether an individual is qualified may depend on whether there are accommodations available Defense of undue hardship Issue of essential functions make employer’s judgment relevant but not dispositive  Contested issues are likely to include which accommodations compromise essential functions and whether accommodations impose undue burden Shifting burdens:

P must prove that she is qualified individual with a disability Includes burden of production on evidence e vidence that costs of proposed accommodation were not clearly disproportionate to benefit D retains burden of proof on this issue Then burden shifts to employer to prove that proposed accommodation would present undue hardship U.S. Airways v. Barnett

Facts: Disabled worker seeking assignment to appropriate position as reasonable accommodation, even though he would not have been able to get position through bidding under seniority system SCOTUS: Reasonable accommodation does not usually require re quire violation of seniority system Will usually result in summary judgment for employer P can establish exceptional circumstances

 

It is presumed that an accommodation which conflicts with the rules of a company’s bona fide seniority system is not reasonable; however, the employee will be able to rebut this presumption by presenting evidence of special circumstances which would make an exception to the seniority system reasonable in this particular case

It is not per se unreasonable to violate a seniority system to accommodat accommodate e an employee, but it will be in most cases The presumption favors the seniority system remaining unaffected because of the legitimate expectations of other employees in the interest of the seniority system Failure of a company to make a reasonable accommodation (in regard to the known  physical or mental limitations limitations of an otherwise qualified employee) will will constitute discrimination under the ADA An employer can defend its decision to not provide a reasonable accommodation (and thereby avoid liability) if it can demonstrate that the accommodation accommodation would impose an undue hardship on the operation of his business Reasonableness of an accommodation entails two elements: That the proposed/available accommodations were objectively reasonable (they would be rational options according to most employers in the same position/industry as the D) Burden of proof on P (element of the claim) That the proposed/available accommodations would not impose a subjective undue burden (that this particular employer would not have any specialized reasons for not providing the accommodations) Burden of proof on D (affirmative defense) Employer can also evade liability by challenging the reasonableness reasonableness of the employee’s  proposed accommoda accommodations tions “Any accommodation would be unreasonable”   Option of disproving the employee’s claim as well as asserting its own affirmative defense

Seniority systems have been highly protected in other employment discrimination contexts Title VII particularly protects seniority systems ADA doesn’t include this protection 

Given how much of Title VII was imported into ADA, maybe it means something that the  ADA didn’t incorporate incorporate this provision

 

Seniority systems are an important fringe benefit of jobs Scope of reasonable accommodation Some preference beyond neutrality “Accommodation” “Accommod ation” requires changes effective in counteracting disabilities affecting job

 performance  performan ce “Reasonable” “Reasonab le” in terms of effect on business and on other employees

Resulting in burden on P to propose accommodation accommodation that is generally reasonable reasonable D to show special circumstan ci rcumstances ces of undue hardship Reassignment to a “vacant” position 

Among listed accommodations in §101(9)(B) Contrast absence absence of explicit protection for seniority systems as in Title VII Leads Souter to enhanced duty to accommodate Neutrality among employees Leads majority to presumption against accommodation by violating seniority system Leads Scalia to reduced duty to accommodate Whole point is to spread the cost of employing those with disabilities, not to have the entire burden fall on one individual, disabled or not Two ways to approach reasonable accommodation Seek some sort of mechanical assistance Shift job responsibilities among various employees Would have to argue that lifting is not an essential function What qualifies as reasonable accommodation would be contingent on the resources of the firm, number of employees, etc. Same accommodation may impose different burdens depending on the employer If the employer attempts in good faith to provide reasonable accommodation, accommodation, he cannot be held liable for damages Provides incentive for employer to work with employee

 

EEOC Regulations Facts: P rejected from job because of liver disease and employer said he would be a threat to himself Under EEOC regulation expanding upon “direct threat” defense of §103(b) 

Reasonable interpretation of the statute Paternalism under the ADA

Paternalism not allowed for sex discrimination under Title VII Presence of EEOC regulation Reasonable interpretation of statute Advocacy role of EEOC for disabled individuals Why do we allow this degree of paternalism in ADA case when we rejected rejec ted it under several sex discrimination cases? Case looks very much like Johnson Controls Difference isn’t the certainty of harm, but that there’s more individualized determination of harm in this case

Getting such individualized evidence is not so simple under the ADA, however, because there are narrow limits on employer’s abilities to get medical examinations